People v. Ellis

Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Harry G. Comerford, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 25, 1979.

The defendant, Morris Ellis, was convicted of two misdemeanor violations of the Election Code (Ill. Rev. Stat. 1973, ch. 46, pars. 29-11, 29-12) in a bench trial in the circuit court of Cook County. He was fined $100 for each conviction. The appellate court found the evidence insufficiently supported the convictions and reversed. (47 Ill. App.3d 596.) We allowed the People leave to appeal. (65 Ill.2d R. 315.) The parties agree the issue is whether the evidence was sufficient to establish guilt beyond a reasonable doubt.

During the primary election day of March 19, 1974, the defendant was a poll watcher. Among others who were at the polling place at 919 West Montrose Avenue in Chicago on that day were the two complainants, Patricia Fust, a Republican election judge, and Marion Clough, a Democratic election judge. On complaint of Fust, the defendant was arrested. Fust's original complaint was "nolle prossed" on motion of the State and three new ones filed. One of those was dismissed. The other two are germane to this appeal. The first, over Fust's signature, charged the defendant with failure to comply with an order of the election authority in that he continued to "electioneer" in the polling place after being told to stop, in violation of section 29-11 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29-11). The second complaint, over Clough's signature, charged the defendant with disregard of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29-12) in that he "knowingly solicited votes within the polling place" in violation of section 17-29 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 17-29). Section 29-11 of the Election Code provides:

"Any person who knowingly fails or refuses to comply with any lawful order of an election authority issued by the election authority in the performance of the duties of the election authority, shall be guilty of a Class A misdemeanor."

Section 29-12 is:

"Any person who knowingly (a) does any act prohibited by or declared unlawful by, or (b) fails to do any act required by, this Code, shall, unless a different punishment is prescribed by this Code, be guilty of a Class A misdemeanor."

Section 17-29 provides:

"No judge of election, challenger, or other person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place or within 100 feet of any polling place; no person shall interrupt, hinder or oppose any voter while approaching within 100 feet of any polling place for the purpose of voting. Judges of election shall enforce the provisions of this Section."

Five separate incidents, occurring on March 19, 1974, and giving rise to the charges, are involved. The first occurred about 9 a.m. when two voters, a man and a woman who were not together, entered the polling place at the same time. Patricia Fust, who had been an election judge for previous elections, testified the man, whose name she could not recall, asked for a Republican ballot, but the defendant said the voter "made a mistake" and wanted a Democratic ballot. She said she then told the defendant to "leave the voters alone." Marion Clough testified she recalled that the man and the woman, whose names were Bunting and Marks respectively, requested Republican ballots but that the defendant interjected with a direction they be given Democratic ballots. According to Clough, Bunting replied, "Sir, I know what I want." Clough remembered Fust asking the defendant to leave the voters alone. Frank Alschuler, who was a poll watcher from 6 to 9:15 a.m., testified he saw a voter named Bunting check the "Republican" square on a certificate of registration. The defendant said the voter was confused and wanted a Democratic ballot, according to Alschuler, but the voter repeated his request for a Republican ballot; at this point Fust said the voter should not be harassed. Alschuler further testified that the voter finally marked the Democratic square of the card and crossed out the Republican mark. On cross-examination, upon being shown a voter's red certificate of registration with the name Howard Bunting on it, Alschuler admitted there was no change or erasure but that the card was marked in the Republican square. Alschuler further testified that although he may have been mistaken about the name, he did see a man cross out the Republican square on the voter registration card and mark the Democratic square.

The defendant testified that he knew Howard Bunting and that he conversed with him on March 19, 1974, but that he did not speak to him inside the polling place. Nor did he have a conversation about Bunting with others inside the polling place. Witness Mary Hudik, a Democratic judge of election, testified that she did not see the defendant do "anything unusual," that he helped "wheel in" disabled voters, and that she knew Howard Bunting and did not see the defendant talking to Bunting. Henrietta Marks, on behalf of the defendant, testified she entered the polling place at the same time as Howard Bunting and that the defendant said nothing to her in the polling place, nor did she hear him say anything to Bunting.

On rebuttal Howard Bunting testified that upon showing the woman behind the registration table his registration card and signing "the slip," he was given a Democratic ballot which he refused, stating, "I'll take a Republican." He stated the defendant "told them to give me a Democratic ballot." On questioning by the court, Bunting said the defendant made the statement prior to Bunting's request for a Republican ballot.

The State maintains that this incident resulted in the order by the election judge, Fust, to "leave the voters alone," and that the order was subsequently violated. Ill. Rev. Stat. 1973, ch. 46, par. 29-11.

Between 10 and 11 a.m., the second incident occurred. A female voter requested help while in the voting booth. Fust and Clough aided her. The defendant objected to the manner in which the help was given. Fust testified that the woman declared Democratic, stepped into the booth, and asked for help (after pulling down a lever resulting in three votes for one candidate) because she wished to cast 1 1/2 votes for each of two candidates. Fust said she asked Clough, the Democratic judge, to step into the booth with her to explain how to operate the machine. As Fust was explaining to the voter, the defendant interrupted with an admonishment not to instruct the voters and that the voter was to vote for only one candidate. Fust testified she replied it was the voter's choice. Marion Clough testified that a voter asked to be shown how to use the machine so Fust asked the witness to enter the booth with her. The witness said Fust "pulled the curtains over our shoulders" and explained to the ...

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